I’m writing this brief blog just to let you know that we have some additional decisions on the ADA / Internet issue. Unfortunately they don’t tell us much. In Gil v Winn Dixie Stores, Inc., Case No. 16-23020 (SD Fla. March 15, 2017) Judge Scola adopted the reasoning in Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 949 (N.D. Cal. 2006), the earliest and most influential of the ADA / Internet decisions. In Gomez v. J. Lindbergh USA, LLC, Case No. 16-22966 (SD Fla. Oct. 18, 2016) Judge Williams adopted the same standard in finding that a complaint was sufficient to support a default judgment.

Those involved in ADA / internet lawsuits will also be interested in Hindel v. Husted, 2017 WL 432839, at *7 (S.D. Ohio Feb. 1, 2017). This is a Title II case, and for Title II entities there is no doubt that an accessible website is required. What stands out is the time the court gave the defendant to make its website accessible; just seven months. DOJ and other settlements in this area typically require compliance in 18 to 24 months. The explanation for the short time line probably lies in the procedural history of the case, but it is a reminder that courts unfamiliar with the complexity of WCAG 2.0 compliance may not understand why accessibility can take a good deal of time.

Finally, a non-internet case from Utah ties into the ongoing discussion of internet issues because it concerns a program that was not conducted from a physical space. J.H. by and through Holman v. Just for Kids, Inc., 2017 WL 1194213 (D. Utah Mar. 30, 2017) concerns a program for disabled adults that is conducted primarily from vans that take the participants to various activities. The plaintiff claimed her exclusion from the program violated the ADA. The Court, after a careful analysis of cases concerning whether a “public accommodation” must be a physical space sided with those courts so holding. Because the vans were not public accommodations the program itself was not a public accommodation subject to Title III.

The case is interesting with respect to issues concerning internet access because of the Court’s discussion of the physical places the program was related to. Notably, the Court was not impressed by the fact that the program had a physical headquarters, finding there was no relevant nexus between the physical headquarters and the program itself.

For those who are counting, the trend is toward adopting the rule in Nat’l Fed’n of the Blind v. Target Corp., which found that web sites could be considered services of a brick and mortar store and would therefore be required to be accessible in the same way other services of such stores had to be accessible. With most of the decisions made at the pleading stage what we lack is a clear description of how closely a web site must be related to a physical store in order to be considered a service. One can imagine, for example, a retailer maintaining two websites, one of which provides information about store locations, hours, sales and the like, while another serves strictly as an online retailer like Amazon in order to avoid any requirement of accessibility. Would this change if the online offerings were in the same website as the store information? After all, the online sales are not a service of any store. The answers to questions like these remain unclear.

In the meantime, despite some favorable recent rulings, the safest course for any business is to begin work on website accessibility now in the hope that money can be devoted to better serving disabled customers instead of paying off the lawyers in the ADA litigation industry.

On January 17 the District Court for the Middle District of Florida flatly rejected an ADA claim based on a lack of website accessibility. The Court’s explanation was straightforward:

“Regardless, Plaintiff may not claim a violation of Title III based on an internet website’s accessibility. Neither Busch Gardens’ nor SeaWorld’s online website is a physical or public accommodation under the ADA. Access Now, Inc. v. Sw. Airlines, Co., 227 F. Supp. 2d 1312, 1321 (S.D. Fla. 2002). “[T]he internet is a unique medium—known to its users as ‘cyberspace’—located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet.” See id. (internal quotation marks omitted). Hence, Plaintiff is unable to demonstrate that either Busch Gardens’ or SeaWorld’s online website prevents his access to “a specific, physical, concrete space such as a particular airline ticket counter or travel agency.” See id. As a result, Plaintiff may not plead a claim based on accessibility of an online website under Title III of the ADA. See id.” More

The ADA played a typically minor role in the recent election. Democrats made it clear they were for the disabled but did not propose specific new programs. Republicans barely mentioned the disabled except for a brief controversy involving Trump mocking a disabled reporter. With disability rights playing such a minor role in Republican politics one might think that Trump’s election means no change, but in fact a Trump presidency may lead to a significant narrowing of the ADA’s application and reduced federal enforcement action. More

How can I avoid getting sued for having a non-accessible website? With thousands of demand letters sent, and more than a hundred lawsuits filed(1), this is an important question for any business that has a consumer facing website. It is widely assumed based on past DOJ consent decrees, existing non-ADA regulations and the settlements made by private litigants that “accessible” means compliant with WCAG 2.0, success level AA.(2) Most businesses find, however, that it is a long and rocky road from today’s non-accessible website to a primary website that meets the WCAG 2.0 standard. Until the journey’s end there is no certain defense to an ADA lawsuit.(3) On top of that, it is universally agreed that a dynamic consumer facing website will inevitably fall out of compliance unless the folks who create and maintain it are constantly vigilant. More

This is a follow up to last week’s blog, “Consolidate and Eliminate.” A magistrate judge in the Western District of Texas seems to be just that in a series of cases (more than 300) filed by Jon Deutsch in Austin, Texas. Deutsch v. Annis Enterprises, Inc., 2016 WL 5317431 (W.D. Tex. Sept. 21, 2016). I won’t provide a detailed analysis of the opinion, which should be read by every lawyer representing defendants in serial litigant cases,* but two points stand out. First, the Court conducted an evidentiary hearing, thus moving past the pleading stage, at which standing depends only on the plaintiff’s willingness to lie. Putting the plaintiff to his proof of standing early in the case is the single most important reason to consolidate and eliminate because it allows the critical fact issue to be resolved early, before the costs of litigation become absurd. More